The paper looks at “jam band” communities like the Grateful Dead. Jam bands encourage fans to engage in some copying, and community members have strong and community-enforced norms against exceeding the permissions given by the bands. Mark uses a rich law-and-social-norms analysis to isolate some lessons we might learn from the jam bands community that can apply to copyright infringement generally. The paper is tightly written and very accessible. If you’re interested in a fresh look at the file-sharing debate (or copyright “piracy” generally), you should read Mark’s paper.

The abstract:

“Conventional wisdom says, with ample justification, that we cannot persuade the average individual to comply voluntarily with copyright restrictions on works like popular music. This Article challenges that conventional wisdom with the example of a community of music fans centered on artists known as “jambands.” The jamband community has developed social norms that reinforce and respect artists’ copyrights. The experience of the jamband community provides a model for the development of pro-copyright social norms in a world where compliance with copyright laws is increasingly a matter of individual choice.

This Article examines the problem of filesharing in light of research regarding what motivates people to obey laws. Studies indicate that people are motivated at least as much by their belief that a law is moral as they are by fear of the consequences of violating it. In fact, attempting to enforce laws that contradict social norms too greatly may be counterproductive. Nevertheless, copyright owners have focused almost exclusively on deterrence rather than fostering social norms that support compliance. They would do well to try to persuade people that obeying copyright law is the right thing to do, rather than merely prudent.

This Article presents a case study, based on extensive first-hand observation, of the social norms of a community that respects copyright. The jamband community is a vital and growing movement in popular music that includes some of the top-grossing touring bands in the country. The original jamband was the Grateful Dead, but the label now applies to bands from many genres. What defines a jamband more than anything else is its policy regarding intellectual property: Jambands allow their fans to record live shows and to copy and distribute the recordings freely. Jambands have developed a unique bond of trust with their fan community, which has developed social norms against copying musical works that jambands have designated as “off limits.” These restricted works are typically studio recordings or live releases sold commercially. The community enforces these norms, sometimes even reporting violations to the bands’ attorneys.

The social norms of the jamband community might be a mere curiosity but for the fact that they appear to be based on a deeply rooted human behavioral trait known as reciprocity. Reciprocity motivates people to repay the actions of others with like actions—value received with value given, kindness with kindness, cooperation with cooperation, and non-cooperation with retaliation. Under the right circumstances, reciprocity can foster and sustain pro-social, cooperative social norms. This Article examines the latest laboratory and theoretical research on reciprocity from behavioral and experimental economics and applies it to the social norms of the jamband community.

Since the social norms of the jamband community are rooted in this universal behavioral trait, we can draw several potential lessons for the mainstream music community. The example of the jamband community may offer a “carrot” to accompany (or supplant) the “stick” of lawsuits. It also offers an alternative to proposals for ever-escalating regulation, more restrictive technology, or radical changes to copyright law. The Article concludes with several concrete proposals for changing business models and enforcement strategies to promote pro-copyright social norms.”